Comment of the Week: Understanding "Under the Radar"
Saturday, February 5, 2011 at 4:56AM
By Jill Arnold
This week’s COTW is from (one of my favorite bloggers) Rebecca Public Health Doula, left on the post Is The Big Push for Midwives an Oppressive Campaign?.
[Excerpt]
And it got me thinking about how I see the point that opponents of licensure make. I think the lawyers in the discussion made it very clear that you’re practicing just as illegally in a state with no licensure as you are practicing without a license in a state WITH licensure. But I think people have the sense that right now those CPMs in no-licensure practice “under the radar” and can offer choices to women who otherwise would have no options at all, while once licensure comes in the vast majority will choose licensure and be restricted in their offerings; and those who don’t will be more frequently targeted and easier to prosecute. Is this based in facts and past events? I have no idea. But I almost get the sense of people in the back room whispering “Shut up you guys, you’re just attracting attention and by asking for ‘legitimacy’ you’ll ruin everything.”
I believe CPM licensure is needed and important. No, licensure does not create great midwives any more than it creates great doctors, and all consumers should do their due diligence on their health care providers (and contractors, plumbers, etc.) But it creates a system for CPMs to be recognized and integrated into the system, and it sets a basic level of competency and system of redress for professional transgressions. It enables them to practice and transport without fear and for their patients to feel comfortable hiring them. But I still think it’s a fair question of whether licensure limits the options of birthing women. Do we have any evidence that it expands it, limits it, or has no effect?
Reader Comments (21)
Can the question be rephrased as, "Does licensure mean that formerly practicing midwives will no longer offer services they offered before licensure?" I don't have any evidence, so I apologize for commenting, but I do believe you have to consider the effect of registration. Once there's a Midwifery Board and a Practice Act that they can and will be held accountable to, and once they're registered by name and address with a department of professional licensure, I imagine many midwives will be at least more uncomfortable performing "under the radar" services such as breech births or post-due births.
I think that, objectively and ideally, not licensing midwives is stupid. But in the short term, it is probably going to restrict the choices and options I and my wife immediately have, as they will now come under the scrutiny of legislators and insurance policymakers and (heaven help us) the ACOG, instead of the judgment of competent midwives. I'm not quite ready to say the sacrifice is worth it.
* did not mean to include "formerly practicing midwives", just "practicing"
Great comment! I think it really sums up the conflict. As a consumer of care, I simultaneously long for the benefits that recognition of CPMs will bring AND I dread falling outside the realm of "normal" and having my choices restricted away...
Thank you for posting the comment thread. It was fascinating and as I like to argue with myself- I could easily see both sides.
I read something once about the founders of this country who said (loosely) that once you enshrine the right of free speech in the constitution, you have already lost it.
I couldn't understand that for a long time. Gradually, as I started to have more experience with the law and with the gray area between "legal activities", "alegal but who cares," "illegal but no one caught me," and "being prosecuted," I understood more. Once you make a law legalizing something, it is always more limiting than the champions of the law first think. Think of "free" and "speech." Although I am not a lawyer, and I may stand corrected, my understanding is that those two terms need to be defined. And the defining is where we lose what we thought we had. For example, now the court has defined speech to include money, and speakers to include non-human persons (corporations). Suddenly "free speech" takes on a whole new meaning for a lot of people, and some view this to be limiting. (not the corporations, certainly, but probably the non-corporate humans who don't have a lot of money!)
So when it comes to licensing CPM's, I am wary, like many of the commenters. I want midwives to have the opportunity to practice without fear of prosecution. But licensing and regulating will by definition bring restrictions on their practice, and so for some, the fear of prosecution will continue (albeit for different reasons).
It is not a simple issue.
This comment, and the whole conversation really hits on the underlying tension in all of public health. Sometimes legitimate public health regulations like midwifery licensure conflict with, limit, or impede individual civil liberties, like a woman's right to give birth where and with whom she wants.
The devil is really in the details. In my state, recently-passed legislation did not put any practice restrictions or automatic risk-outs on a midwife's license. It would be very hard to say that this restricted women's choices. I'm curious to hear from midwives and clients in states where there are restrictions. I do understand why if the restrictions are onerous, some would feel that the trade-offs (i.e., consumer protection, better integration, ability to carry meds) aren't worth it.
"This comment, and the whole conversation really hits on the underlying tension in all of public health."
Yes. This.
Most of the older midwifery licensure laws in the country pre-date the development of nationally-authorized educational and credentialing standards created by home birth midwives for home birth midwives, so each state had to make them up on their own. This is one reason why some, but not all, of the older laws are more restrictive than those that have been passed during the last 6 years, which is when midwifery advocates began to more formally organize across states via the Birth Policy yahoo group, which later gave birth to The Big Push for Midwives Campaign.
When advocates in various states began sharing model legislation, legislative strategy, messaging, resources, and best practices for building a highly mobilized and effective base of grassroots activists, it resulted in midwifery laws that strike an appropriate balance between evidence-based practice and safe standards of care. If home birth parents and their allies are mobilized, it's possible to successfully defeat attempts by opponent groups to include provisions that would result in overly restrictive regulations, such as denying access to HBAC.
I think I would whole heartedly support TBP if we could get a law passed saying all women have a right to birth where they wish with whoever they wish in attendance. That would protect those who don't want to license as well as moms, yet it would give all the benifits TBP is aiming for.
We also need a law stating that one human being can not be forced to have medical procedures (including c-sections) for the health of another human being. This would give mom the ultimate power to say yes or no. No one could call CPS on her for not going along with the doctor.
"...lawyers in the discussion made it very clear that you’re practicing just as illegally in a state with no licensure as you are practicing without a license in a state WITH licensure."
I'm sorry - this is not clear to me. Could you explain? I would think that if there is no law on a subject, that then there is much more freedom on it. There are no laws about where and when we eat, for a silly example. We can do that pretty much any time, anywhere, or with anyone we choose.
[btw, the Kathy posting just above me isn't Kathy @ Woman to Woman CBE, but another one; I did post a comment on the other post, but haven't posted on this one yet. Just didn't want some people to get confused with two people of the same name. :-)]
States can pass laws that declare women have the right to give birth where and with whom they choose, and some have. But those laws are wide open to a judicial challenge and the courts have been anything but reliable allies when it comes to upholding the rights of pregnant and laboring women. And until we have a consistent body of case law (to my knowledge we currently have none) confirming that such a right does, in fact, exist, there's really no reason why prosecutors in states with such laws wouldn't be able to challenge them and that various legal and medical authorities in states without them couldn't continue to prosecute or forcibly treat women who make birth choices they deem to be unsafe.
Then there's the issue of the provision in Roe v. Wade declaring that states have a compelling interest in protecting the health and well-being of a viable fetus--whether or not this applies to women's birth choices is not an issue I'd want the courts to look at because, given their historically anti-midwife and anti-home birth bias, I think there's a good chance we'd lose.
And here's another reason why I'm not confident that the right to make personal birth choices would be upheld by the courts-- we can't even get consistent rulings on a long-held common and case-law right that has over a century's worth of jurisprudence behind it, which is the right to bodily autonomy. Even though the various appellate and U.S. Supreme court rulings on this right for non-pregnant human beings is eminently clear, when it comes to whether or not this right applies to pregnant women, the courts have been all over the place, some ruling that they can't be forced to undergo so much as a blood transfusion, let alone a cesarean, without consent, even if it means their baby will die, others ruling that Roe is very clear in giving states the power to detain pregnant women and force them to accept unwanted treatment on behalf of their fetus.
Until the U.S. Supreme Court weighs in on any of these issues--and to date it has not--we can expect to continue to see many more medical and prosecutorial abuses of the rights of pregnant women, which is an entirely separate issue from providing legal practice for their midwives, although delivering at home under the care of a legal provider suggests to many people--and to CPS in various states--far more concern for ameliorating potential risks to the baby than planning to give birth at home with an illegal provider.
Ha! Mississippi Kathy @ Woman to Woman- I tried to answer your question on the other post. Other Kathy- maybe check through the comments there to see if that makes things clear as mud : )
I'm with Chris. Licensure is a double edged sword. Here in VA CPMs are licensed and as far as I know, have no restrictions regarding twins, VBACs, etc. (I believe the only way I could have "risked out" was by going over 42 weeks) I just had my home VBAC in 2008. However, other states try to push licensure with such restrictions, i.e. Illinois. I support licensure but only if it does not place homebirth consumers under the same bogus limitations as hospital birth.
I read this cotw but post this"
In states where there is no recognition of legal home birth provider" available- going along tempting the will and fate of the legislature is where the problem seems to develop. If consumers want HBAC, Breech HB, Twins HB- they have to drive that bus. Otherwise as several people have noted the legislature then decides the autonomy of the birthing public weighed against the interests of the unborne and the safety of the general birthing population will justify a law.
I'm in Massachusetts where I can start a sex club this afternoon, do an IUI (inter uterine insemination) then have anyone attend my birth who is NOT a licensed nurse (using her license) or a certified nurse midwife under the supervision of a doctor in a hospital. I cannot however artificially inseminate the 300 lb sow I have, or sell you a gallon of raw goat's milk because these pursuits are highly and tightly regulated. I can also kick your ass in mixed martial arts because that is now legal, and deliver a baby even though I have no training as a midwife. All I have to say is hey look at me. look at me I'm a home birth provider and I AM. So I don't know exactly what I'm getting at here won't be the first time me or anyone else rambled on and on here- but the point is- what people miss as a positive about regulation/statute/licenses of HB providers is birth consumers not legislators drive the birth bus.
so I say you wants you some HBAC, breech and twinnery at home- file some legislation.
"Other Kathy" here... so alegal is not illegal. It's just, in the view of some, "tempting fate". I understand that. Thank you for that input. I appreciate it. Personally, I just want to serve these woman, and not get tied up in red tape. I want the woman in front of me to be the person I answer to.
Kathy, I meant no offense by "other Kathy," truly. I'm sorry the explanation wasn't clear. Alegal does not exist. A midwife can answer to the woman in front of her. But if the midwife is doing so without a license or explicit legal authorization, she may also have to answer to the police. Them's the facts.
I'm actually a little frightened now that SaanenMother is going to come kick my ass with mixed martial arts.....
Wow, COTW! (And as I was typing it out I was thinking "WHAT am I doing up at 3 a.m. writing this...oh my crazy sleep schedule" - I guess I should write late at night more often). Thank you Jill!
I like the way that Chris phrased that all very succinctly. Like Chris, I imagine it would be difficult to collect data on, post-licensure, how many CPMs remain underground; and how many become licensed and give up certain services. Do we at least have information from TBP or other organizations on what types of restrictions have been placed on CPMs in recent, more modern CPM legislation?
And as several people have asked, is there a public health argument for placing certain restrictions on a profession's practice, and the CPM's in particular?
So many questions, no answers from me yet... but thanks for sparking this great discussion Jill!
Rebecca (Public Health Doula)- I wish I had more to offer you as a prize than an excerpt and a .jpg.
It's my pleasure to host the discussion, which was apparently long overdue.
And as several people have asked, is there a public health argument for placing certain restrictions on a profession's practice, and the CPM's in particular?
But then we get into being the arbiter of many things. If we say that a parent decides that a footling breech delivery at home is their way or the only way and they opt out of obstetrical care in a hospital and then deliver at home and have a suboptimal outcome, then what- we are saying to consumers, "Well you assumed the risk so we can't help you now that you chose this ill fated health choice, which we see as ill fated." Then we get into the state defining what is and is not safe which they whole heartedly do on matters ranging from as I pointed out earlier: the sales of raw milk, meat and what kind of roof shingles you can have on your home to the life and death matters of murder, manslaughter etc.
What is always curious to me is that IF a person decides that in lieu of chemotherapy, radiation, and surgery they would like to use only natural healing methods even though their efficacy has not been fully proven or is at best weak. I do not see the ACLU stepping in to protect the rights of the dying but we now have states ostensibly stepping in to protect the rights of the "unborn" or conversely was the case in FL recently the rights of the unborn where the mother had a court ordered c-section. Curious, it's all very curious.
Additionally, I have to say that again in Massachusetts we have a true anomaly, I know that it is important to delineate the difference in MOST unregulated home birth provider states. Home birth is legal in all these United States. Massachusetts is one of the truly and only alegal states. Yes, you can have a home birth in your home (legal), yes you can have anyone who holds themselves out as a provider of home birth services regardless of designation UNLESS they are a licensed and practicing nurse, or a licensed and practicing CNM, or doc I suppose (although- that'll be the day.) This is because of the case: Janet Leigh v. Board of Registration in Nursing.
See this link for further reading:http://ajph.aphapublications.org/cgi/reprint/84/6/1022.pdf
a finer note of which is this:
"The fact that the Legislature has not
enacted legislation regulating lay midwives
does not render the statute
regulating nurse midwives unconstitutional.
The equal protection clause does
not require the government to choose
between attacking every aspect of a
problem or not attacking it at all." ( via Declerq, 1994.)
The severe disconnect for me is in the following ways:
When there is an unplanned precipitous home birth (ANYWHERE) we have a news team go out to someone's home and get to hear the glorious re-living of the event via the 911 call on the evening news:
"Holy %$^&!, there's a head coming out, what do I do, what do I do?!!!!" (Dad, sister, 9 yr. old child, taxi driver) Then her vagina had apparently done a feat against nature, an unemcumbered vaginal birth at home. HOLY CRAP not in this day and age???!!!!! So when we have a planned home birth- where apparently there is double to triple the mortality rate (via Dr. Tuteur, and now ACOG) there is in a normal planned home birth- a feat against nature, a vaginal birth where someone was prepared on both ends, both parent, and provider. However, it is in the skill that the importance lies. Do I think there are skilled DEM/traditional midwives out there providing services. Yes, most likely. Do I imagine that there are some lousy ill trained CPMs out there practicing, Yes, this is likely. Do I think there are some ill-equipped but highly educated doctors out there- hell yes. The difference lies within the structure of sanction, and of penalties.
Additionally, I think that and this is borderline a duh comment- since home birth is not legal and reported statistically and appropriately in all states there is in my opinion and I have gone around and round in my mind about the various arguments (MANA stats. a PTO here and there that keeps stats.)- there is no way to say with 100% accuracy that home birth is safe or unsafe in America. We can glean from stats. that are incomplete , but that is not fair in either direction. I am btw willing to examine stats. I am not arguing away the danger/safety argument here. I just think until we have all providers reporting we cannot get accurate baseline data.
and no I won't used mixed martial arts on anyone- I just think that it is interesting that Governor Deval Patrick fast tracked the bill to legalize Mixed martial arts ahead of the bill that makes home birth midwives recognized under Massachusetts law. Constitutents who are not protected at birth will be protected in the ring.
Here is btw my email to the president of the Massachusetts Mixed Martial Arts Association- I have signed mine MMA as well- I am an MMA enthusiast- (Massachusetts Midwives Alliance.)
The names have been changed to protect the innocent (MMA guy and me MMA enthusiast)
Hello Anonymous:
I just wanted to make sure I heard correctly on the news tonight that Deval Patrick fast tracked and signed the bill that now makes MMA legal in Massachusetts. I am sure your organization is thrilled- can you confirm this for me?
Sincerely,
Anonymous
MMA enthusiast
Hi Anonymous, thanks for your note. Yesterday the House voted to regulate MMA fighting in Massachusetts, however the governor has not yet signed it into law. As of now, there are two versions of the bill that will need to be worked out in a conference committee. Once the conference committee releases the report both chambers will need to vote on it again. If both the House and the Senate vote to accept the conference report, the bill will then be brought to the governor for his signature. Yesterday was a big day, but there are still a few steps in the process before we’re done.
Thanks again.
Anonymous
*sigh*
Do not ask me why I could not find it earlier- but I think this will shed a bright light on the idea of how states that prosecute midwives operate- it is not the same- as the end result differed, but it strikes at how states construct the charges of: "practicing medicine without a license, etc."
http://masscases.com/cases/sjc/395/395mass670.html
and please do pardon my typos.
another note, an attorney in a neighboring town was going to have a home birth the year this happened, with a hb midwife who maintained a "back-up" physician according to him, but this case prompted he and his wife not to proceed as planned.